A chronology of WSU water rights, aka the "golf course case"
Source: Center for Environmental Law & Policy
The Pullman-Moscow region relies on the Grande Ronde Aquifer for its water supply. Water levels in the aquifer have been dropping at an average of 1.5 feet per year since measurements began in the 1930s.
The Cornelius water right appeal—best known because it relates to Washington State University’s use of groundwater to irrigate its Palouse Ridge Golf Club (shown above) —is an example of the state of Washington’s refusal to use available tools (such as critical groundwater management area, controls on existing water rights, etc.) to address the water situation.
1934-1987: WSU claims or is issued seven water rights, one right for each of its wells. Over the years WSU stops using several of its wells – abandoning Well No. 2 because of potential contamination and ceasing use in Wells 1, 3 and 4 because water levels drop below the depth of the wells. Even so, Washington State Department of Ecology issues water right certificates to WSU that state that WSU has fully used all of the water authorized in its water rights.
1997: WSU proposes to expand its nine-hole golf course. The proposal meets community opposition, especially over water use issues. WSU commits to not build the golf course unless and until it gets a reclaimed water facility that would supply irrigation water for the golf greens. The reclamation facility would pipe treated water from Pullman's water treatment plant.
1998: The Washington State Supreme Court issues a decision that essentially holds that water right certificates that authorize unused quantities of water (aka “pumps and pipes” water rights) are not valid. This ruling casts doubt on the validity of water rights held by water suppliers around the state, including those of WSU.
2003: The Washington State Legislature enacts HB 1338, also known as the Municipal Water Law, which retroactively validates pumps and pipes water rights. In 2006, the constitutionality of this law was challenged by an assortment of plaintiffs, including Scott Cornelius, Sierra Club and the Center for Environmental Law and Policy (CELP). WSU has intervened as a defendant. [More information below about this case, which is known by the name “Lummi Nation v. Washington.”]
2004: WSU President Lane Rawlins revives the golf course expansion idea and in October, the WSU regents approve construction. Scott Cornelius writes comments on SEPA determination, relating to protection of Round Top Park and the impacts on Grande Ronde Aquifer levels if WSU increases its pumping. WSU and the Department of Ecology ignore the comments.
2005: WSU applies to consolidate its seven water rights, so that water from any right may be pumped from any well. In years past, this would have caused the Dept. of Ecology to relinquish the unused portions of the water rights, but because of the Municipal Water Law, those rights are now deemed protected from the “use it or lose it” rule. Scott Cornelius files detailed comments on the water right transfer application.
September 2006: A challenge to the constitutionality of the Municipal Water Law is filed by the environmental plaintiffs (Sierra Club, CELP along with WA Environmental Council, Puget Sound Harvesters (a commercial fishing organization), and three other individuals who hold water rights (including Scott Cornelius). In December 2006, six western Washington tribes file a similar suit. The two lawsuits are consolidated in King County Superior Court under the name Lummi Nation v. State of Washington. Defendants include Gov. Gregoire, and Depts. of Ecology and Health. Several public water supply associations intervene as defendants, as does WSU.
September 2006: Ecology approves the WSU water rights consolidation. One of the rights is deemed invalid. The remaining six rights are held valid. The orders explicitly acknowledge that, of the 5,300 acre-feet of water authorized in the water rights, WSU has never used more than 1,988 acre-feet. Nonetheless, Ecology does not relinquish or rescind WSU’s right to pump the unused water.
October 2006: Scott Cornelius, Sierra Club Palouse Group and Palouse Water Conservation Network file an appeal of Ecology’s water right decisions, represented by Rachael Paschal Osborn. The appeal before the Pollution Control Hearings Board (PCHB) is a trial-type proceeding initially set for hearing for June 2007, but rescheduled for January 2008.
August 2007: WSU begins substantial irrigation of the sod and grass seed on the new Palouse Ridge Golf Club.
September 2007: The Cornelius parties file “summary judgment” motions on all claims raised in the water right appeals. In December, the PCHB rules against Cornelius, et al on all but three issues, putting those issues over for hearing. The basis for most of the PCHB’s rulings is that the Municipal Water Law protects WSU’s water rights.
January 2008: The PCHB holds a hearing on the WSU campus on the remaining issues. WSU Geology Professor Kent Keller testifies for the appellants; UI Professor Jim Osiensky testifies for WSU. WSU water system manager Gary Wells testifies that WSU’s water usage on the golf course increased in 2007.
April 2008: The board issues its final order denying all of the Cornelius claims. The Cornelius parties move for reconsideration.
June 2008: The board issues its final order. As with the summary judgment order, virtually all of the claims are decided based on the Board’s interpretation of the Municipal Water Law. Interestingly, the board accepts all of Prof. Keller’s testimony and notes that the declining water levels are a crisis in the making for the region that must be addressed by all water users. Nonetheless, the board rules that Washington state cannot control WSU’s water rights.
June 2008: After months of briefing, the Lummi Nation case is heard by King County Superior Court Judge Jim Rogers. Judge Rogers holds that 3 aspects of the Municipal Water Law are unconstitutional (the three unconstitutional aspects include the provision stating that pumps & pipes water rights are valid). These holdings, if upheld by the Supreme Court, will eviscerate the WSU rulings and result in substantial changes to the WSU water rights.
July 2008: Cornelius et al file an appeal of PCHB water rights decision to Whitman County Superior Court. Meanwhile, the Lummi Nation case is appealed to Washington State Supreme Court, which sets a briefing schedule.
August 2008: WSU opens its Palouse Ridge Golf Course. Water pumped from the Grande Ronde Aquifer is used to water the greens.
October 2008: Cornelius et al ask Division 3 of the Court of Appeals to accept “direct review” of the Cornelius appeal. The Court denies this request. The Cornelius case now sits in Whitman County Superior Court, awaiting a briefing schedule.
October 2008: The Lummi Nation defendants, including WSU, file their first briefs in Washington Supreme Court. They attach the PCHB decisions from the Cornelius water rights appeal and argue that case shows how the law can be constitutionally applied.
October 2008: WSU requests funding reclaimed water facility out of 2009 budget. Washington’s governor supports the idea only if reclaimed water is not used on the golf course. The Legislature does not approve funding.
April 2009: Lummi Nation briefing is completed. The Washington Supreme Court issues an order stating that it will accept review of the case and schedule oral argument for Autumn 2009 or Winter 2010. A decision is expected in one to two years.
